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HomeMy WebLinkAbout1993-0833.Ladha.98-03-20 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT I BOARD DES GRIEFS I 180 DUNDAS STREETWES.r, SUITE 2100, TORONTO ON M5G 1Z8 TELEPHONE/TELEPHONE (416) 326-1388 I 180, RUE DUNDAS OUEST. BUREAU 2100, TORONTO (ON) M5G 1Z8 FACSIMILE/TEtECOPIE (416) 326-1396 I GSB #0833/93, 2394/93 OPSEU #93B759, 94D227 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN ! OPSEU (Ladha) Grievor - and - The Crown In RIght of Ontano (Mimstry of Finance) Employer BEFORE N Dlssanayake Vice-ChaIr FOR THE R Anand UNION Counsel Scott & Aylen Bamsters & SolIcItors FOR THE D Strang EMPLOYER Counsel, Legal ServIces Branch Management Board Secretanat HEARING October 27, November 9,21,22, December 1,1995 February 6, April 10, 11,29,30; August 22, 23, 1996 February 19,24,25,28, March 6,7,27, May 1,2,1997 .....-;:=- -=::;:- '~, 't - . 2 DECISION This decision deals with two individual grievances filed by Mr Mark Ladha, a Tax Auditor employed in the Corporate Tax Branch Office of the Ministry of Finance in North York, Ontario The first grievance dated March 10, 1993 reads "1 grieve that the letter dated March 5, 1993 from Martin Kenney, Supervisor, Field Audit is viewed as a form of harassment, discrimination and intimidation " The settlement desired is stated to be "That the letter be removed from my file and a written apology be mage to myself with copies to my personnel file, L Heller and R Robertson" The second grievances is dated December 8, 1993 and reads "1 grieve the fact that 1 have been improperly evaluated on EPA Form B for the period April 28, 1992 to May 26, 1993 1 further grieve that 1 was not permitted reasonable time (Only permitted balance of day of receipt) to respond to the evaluation handed to me on the morning of December 8, 1993 by my previous supervisor, Martin Kenney" The settlement desired is "The said EPA Form B be removed from my personnel records and all other existing files wherever kept " The Corporate Tax Branch consists of offices in Oshawa, North York and Lonoon While Oshawa was designated the head office, North York was by far the largest, with approximately 65 tax auditors employed The grievor is an individual of south Asian descent He had his high schooling in Tanzania and had a B Comm Degree from India Subsequently he pursued .~ '~ 3 accountancy studies in UK before immigrating to Canada He joined the Ministry as a Tax Auditor in the classification of Financial Officer 2 in March 1977 In 1982 he was promoted to F03 and in 1986 was upgraded to the classification of F04 which he held during the period covered by the present grievances He obtained his Canadian CGA designation in 1988 The Branch office was headed by a director In North York the office was divided into 4 field audit units, each headed by an Audit Manager While all units conducted general audits of corporations, each unit tended to specialize in auditing of particular industries Each unit in turn was divided into audit groups headed by a group manager, who y,ras responsible for the direct supervision of the auditors in his or her audit group Tax Auditors in the classification of FOS held the title of Senior Field Auditor They were members of the bargaining unit and acted as team leaders for FO 4s, 3s, and 2s in the particular audit group The group managers reported to the Audit Manager, who at the relevant time was Mr Lionel Heller The focus of this proceeding is unit E' , where the grievor was employed during the alleged events From April 28, 1992 to May 26, 1993 Mr Martin Kenney was the grievor's Group Manager and immediate supervisor The two grievances refer to actions taken by Mr Kenney in his role as the supervisor The grievance relating to the medical certificate The grievor testified in-chief that on Monday March 1, 1993 he was sneezing and coughing in the office and had "flu-like" symptoms In his view his condition was visible to everyone, because one auditor commented fP ~ ~ I 4 that by remaining at work he-was spreading the virus Mr Heller had also remarked that the grievor did not "look good" Despite his discomfort, the grievor worked his regular hours on March 1st and left around 3 30 P m I The grievor testified that his condition got worse overnight When asked if he went to work the next day March 2nd, he said "No I phoned in in the morning and talked to the receptionist as we normally doH He was not asked, and did not testify as to what specifically he told the receptionist He went on to testify that that day he saw his doctor, who told him that he had "a bad case of flu and bronchitis" and told him to stay home and rest for 3 days He obtained a medical note from the doctor during this visit on March-2nd, which certified that he "was off work from 2nd March 1993 until 4th March 1993 for medical reasons" The grievor testified that he rested in bed on March 2nd, 3rd and 4th but reported to work on Friday March 5th The grievor testified that soon after Mr Kenney arrived at work on March 5th, he called the grievor in to his office and asked him why he had not been at work_ the previous few days The grievor replied that he had been sick Mr Kenney responded "We know you were on March 2nd - what about the other days?" The grievor explained that he had been sick on all three days and was still on medication Then Mr Kenney informed that he had called the grievor at home on March 4th and I that the woman who took the call had told him that he had gone to work He asked the grievor where he was at the time The grievor repeated that he was sick in bed on all 3 days Mr Kenney again asked why he was not at home at the time he called if that was the case The grievor gave the same answer Mr Kenney told the grievor that he would be writing a note, ~ ,~ 5 and the conversation ended The grievor testified that during this conversation, Mr Kenney "sounded rude and unsympathetic" The grievor testified that when Mr Kenney told him about calling his home and a woman informing that he was at work, he immediately recalled that sometime during the afternoon of March 4th his 21 year old daughter had come in to his room and was surprised to see him in bed She told him that someone had called that morning for him and that she had told the caller that he was at work, because she did not know that he was at home in bed The grievor testified "She said he did not leave his name or say who he was or give a phone number and he was not very pleasant" The grievor realized that Mr Kenney was the caller his daughter had told him about The grievor received a memorandum dated March 5, 1993 from Mr Kenney, which is the subject of this grievance This memorandum, which was copied to Mr L Heller and Mr R Robertson, bothMr Kenney's superiors, read On March 2, 1993 you called in sick to the receptionist at North York We did not hear from you on March 3rd or March 4th In order to ascertain your whereabouts for March 3rd and 4th, I called your home on March 4th I was told that you were at work This morning you have infprmed me that you were sick for all three days and have provided no explanation as to why you were not home when I called In accordance with Section 52 10 of the Collective Agreement I am requesting that you provide a medical certificate for the period of your absence March 2-4, 1993 In addition you have claimed that it is your understanding that there is no need to call in each day when you are on sick leave It is and always has been policy to call in each day with your whereabouts This policy has been explained to you before both verbally and at group meetings Allow me to take this opportunity to formally reiterate field audit's policy of calling in each day before 9 30 a m ~ ~ 6 As you were made aware in my memo to you on March 1st, we are under a great deal of pressure from taxpayer P to complete our audit In my memo I requested all working papers be provided to me by March 5th in preparation for a meeting with the taxpayer You have informed me that they will not be available today Please provide me with the earliest date that they will be available I note that you have 27 18 excess hours at the end of February Pet the Audit Administrative Directive issued on January 8, 1993, these hours must be used up by March 31, 1993 Please provide me with a specific list of days when you plan to use this time to facilitate the planning of our meeting with taxpayer i (Note Throughout this decision the actual names of taxpayers have not been revealed at the request of the parties ) Article 52 10 of the collective agreement reads After five (5) days' absence caused by sickness, no leave with pay shall be allowed unless a certificate of a legally qualified medical practitioner is forwarded to the Deputy Minister of the ministry, certifying that the employee is unable to attend to his official duties Notwithstanding this provision, where it is suspected that there may be an abuse of sick leave, the Deputy Minister or his designee. may require an employee to submit a medical certificate for a period of absence of less than five (5) days The union's position was that the issuance of the memorandum was an improper exercise of the rights conferred on management by the second sentence of article 52 10 because "it was unreasonable, discriminatory and a bad faith exercise of management rightsH A declaration was sought to that effect It must be noted that during the opening statements, and indeed in the written grievances themselves, the focus was solely on the actions of Mr Kenney vis-a-vis the grievor However during the second day of the [i- 7 examination-in-chief of the grievor, union counsel advised, that based on certain material disclosed to him, the union would be claiming that Mr l Lionel Heller, the Audit Manager, was also guilty of harpssment and bad faith with regard to the grievor While the employer at that time reserved the right to object to the "attempt t9 expand the stope of It he grievanceH that objection was not pursued during final submissions Instead, the employer took the position that Mr Heller's conduct, even if established, would not have any relevance or bearing on the two grievances before the Board These issues will be dealt with later in this decision Union counsel submitted t~at the right to request a sick note under article 52 10 for absenceS of less than 5 days must be predicated upon a suspicion that there may be an abuse of sick leave It was pointed out that tax auditors, including the grievor, were professionals, who operated on the basis of trust and mutual respect They spent a substantial amount of time working in the field without supervision and were not required to punch a clock He stressed repeatedly that the grievor has had no prior record of sick leave abuse or excessive absenteeism He submitted that in these circumstances Mr Kenney's call to the grievor's home was unwarranted It was demeaning and discriminatory and demonstrated bad faith and vindictiveness Counsel alleged that Mr Kenney took that action as a means of retribution for an incident between him arid the grievor on February 25, 1993 with regard to a waiver proposed to taxpayer P (the "waiver incident) Counsel submitted that besides making an unwarranted call to the grievor's home, Mr Kenney "failed or refusedH to leave his name, when asked for by the grievor's daughter According to counsel, this further demonstrated his bad faith Counsel argued further that tne memorandum itself was harassing in its tone and content, and by the fact ~ '. "- 8 that it was copied to two levels of higher management According to counsel, the grievor had complied with the policy on calling in sick Even if he had not, at worse it was a first offence, and did not warrant the extreme reaction from Mr Kenney Union counsel, also alleged that Mr Kenney had treated the grievor in a discriminatory fashion He distinguished the treatment of two other auditors, Mr L Herskovitz and Mr J Brockman Mr Herskovitz had been absent ill on seven consecutive days in 1990 He called in on the first day and said that he would be off sick until further notice and called in on the last day of absence to inform that he would be reporting to work the next day He was asked for a medical certificate under the collective agreement because his absence exceeded 5 days, but unlike the grievor, he was not called at home by management According to counsel, Mr Brockman had been away for 5 days, and had not called in at all It was pointed out that both Herskovitz and Brockman were white, where as the grievor was not There was much evidence adduced about what the call-in policy was - whether an employee was expected to call in on each day of sickness or whether it was adequate to inform on the first day that the individual will be off sick until further notice What I conclude from the volume of evidence is that there was no hard and fast rule Whatever the written policy was, supervisors applied it flexibly depending on the particular circumstances For example, if on the first day, it was obvious that an employee would be off for an extended period, such as where the employee was undergoing serious surgery or had a serious illness, he would not be expected to call each day Union counsel submitted that if the policy was ;i- '.> 9 applied flexibly in this manner, it would be a vague policy It would not justify the issuance of a critical memorandum to the grievor Whether or not the manner in which the policy of calling-in was administered was proper, in my view, is irrelevant to the issue of whether the memorandum in question was discriminatory, harassing or in bad faith, and whether it contravened article 52 10 The focus of the memorandum clearly was not an alleged non-conformity with the call-in procedure In the memorandum, the grievor was not being penalized or taken to task for not complying with the call-in policy The crux of the memorandum is the request for medical substantiation of an absence of less than 5 days, a request the employer is entitled to make under article 52 10 "where it is suspected that there may be an abuse of sick leave" The reference in the memorandum to the call-in policy is incidental - an attempt by Mr Kenney to correct what he felt was a misunderstanding of the policy on the part of the grievor Whether Mr Kenney's interpretation or that of the grievor was correct is not relevant in this proceeding because even if the grievor had fully complied with the call-in policy, Mr Kenney would have had the discretion to request a sick note to substantiate the absence, if the "suspicion of abuse" test was satisfied It has been held by this Board that in order to invoke the second sentence of article 52 10 by requesting a medical certificate for an absence of less than 5 days, "the employer must demonstrate a suspicion which is not only held honestly, but is also held reasonably" Re Jarvalt 178/83 ( Swan) See also, Re Ralph, 364/80; 370/80 (Gorsky) If the union is correct in asserting that the motivation for the request was J.;. 10 discriminatory on the basis of race or colour, it will necessarily negate any existence of a reasonable suspicion Discrimination, particularly discrimination based on grounds prohibited by law, is rarely practised openly In most cases, one would not find "a smoking gun" Under Canadian Law a complainant alleging discrimination is required to prove a prima facie case of discrimination In most cases there will be no direct evidence of discrimination and inferences will have to be drawn from circumstantial evidence Once a prima facie case of discrimination is made out, the burden then shifts to the respondent to provide a reasonable explanation for the action which on its face is discriminatory See, Re Canadian Broadcasting ,corporation, (1991) 20 C H R R D/369 (Fed ct Of App ); Grover v National Research Council of Canada, (1992) 18 C H R R .0/1 J (Cdn H R Tribunal) Having carefully reviewed all of the evidence, I have concluded that the union has failed to establish a prima facie case of discrimination on the part of Mr Kenney There is not an iota of evidence suggesting that the grievor's colour or race had anything whatsoever to do with Mr Kenney calling the grievor's home or his issuance of the memorandum requesting for a medical certificate I start with the grievor's own testimony During his exarnination-in-chief, the grievor was not asked and he did not give any view as to any motivation which may have caused Mr Kenney to act the way he did, except that once he stated in passing that Mr Kenney was "getting back" at him because of the waiver incident At the very outset of cross- examination by employer counsel, the following exchange took place Q Your illness started on Monday March 1st and you were absent on the 2nd, 3rd and 4th? ..';.. ..-j; 11 A Yes The grievance was filed on the 10th because there were certain, things said on March 5th and February 25th February 25th is relevant because that's when Mr Kenney was very upset for reasons that I had inscribed something on the waiver which he did not approve of So that date is critical He initiated the March 5th letter as a result and I grieved on March 10th Q So you say that the March 5th letter which you grieved on March 10th was given because of what you did with the waiver on February 25th? A Yes I think that's part of it Q Was there anything else? A That was the day Mr Kenney called me in when I returned from the taxpayer after making a submission on a waiver He was furious and angry and perhaps out of control He didn't even ask what happened at the meeting with the taxpayer He went straight to ask about what I had inscribed on the waiver Q S6 the problem on the 5th was because he was angry ') and upset about what you wrote on the waiver on February 25th - he was still upset about it on the 5th? A Yes He was upset and getting back at me In the letter of March 5th, he says that taxpayer P was the reason for what he did Q Where in the letter does he say that? A In paragraph 3 He refers to the pressure we are getting Where did the pressure corne from? Q So you say the reason for the letter was the problem about the waiver - Mr Kenney didn't like what you wrote on it? A That had bearing on what he wrote on March 5th and what he presumed There were one or two other memos he wrote about P prior to March 5th I didn't see any reason for writing the March 5th letter to me, when there were other audit6rs who were not even calling in sick The reason was the taxpayer p's file Q Who were the other auditors? A J Brockman was away He didn't receive any rude phone call at home or receive a memo like this {,. " 12 Q So you say the call Mr Kenney made which your daughter answered was also because of the difficulty Mr Kenney had with the waiver? A The call was rude and not professional Whether i-t had anything to do with taxpayer P's file Mr Kenney should know Q So you don't know? A No Q If so, how can you say that the March 5th letter is ,somehow linked the waiver? A Because paragraph 3 of the letter shows that the taxpayer P's file was in his mind Subsequently, counsel again asked Q So You say that the problems on March 5th flowed from Mr Kenney being upset by what taxpayer P's representative W told him about what you wrote on the waiver? A Yes I gather that is so Q If that is the case, there is no suggestion that it had anything to do with your race, colour or creed? A I think the way he treated me by writing the March 5th letter and by undermining the audit, he was treating me differently A white was also absent He was not asked for a note He was away longer than I was He was an Anglo I am sure Mr Kenney wouldn't have minded if someone like Mr ,Brockman wrote what I wrote on the waiver That's my feeling I had never abused sick leave in the past He even asked head office what to do with me I have reproduced the foregoing evidence in some detail because it demonstrates the contradictory assertions made on behalf of the grievor On the one hand, it is claimed that Mr Kenney was angry about the waiver incident and that Mr Kenney's actions were taken as a means of retribution On the other hand, it is suggested that Mr Kenney's actions had to do with the grievor's race and/or colour In my view, the union .. ,i. 13 cannot be correct in both assertions If the ~ormer is true, that necessarily eliminates the possibility of the allegation of discrimination on the basis of race or colour The only attempt to establish discrimination based on race or colour was through a comparison of the manner in which the grievor was treated, with the way absences by Mr Herskovitz and Mr Brockman were treated Mr Herskovitz, who was also a tax auditor, testified that in 1990 he contacted chicken-pox and was off sick for 7 days He called in on the first 'day and informed his supervisor that he had chicken-pox and that he would call the supervisor when he was ready to return On his 7th day of absence, he called in to say that he was reporting to work the following day He was required to produce a medical certificate because his absence exceeded 5 days, but received no call at home from his supervisor and was not taken to task in anyway Mr Brockman did not testify However, Mr Herskovitz testified that shortly after the March 5th, 1993 incident involving the grievor, he overheard the Audit Manager Mr K Siddiqui inquiring from the receptionist if she knew where Mr Brockman was The receptionist told him "Mr ) Brockman did not call in today " Mr Siddiqui said "He didn't call in yesterday either " Mr Herskovitz did not know how long Mr Brockman was absent, although he inferred from what he overheard that he was away at least for 2 days He testified that he did not think that Mr Brockman had received any discipline because if he did, as union steward he would have become aware of it Under cross-examination, Mr Herskovitz admitted that he did not know what, if anything, Mr Brockman had told his supervisor when he first went off work Nor was he aware what Brockman's illness was, :~~ ) 14 whether Brockman received any memorandum relating to his absence or whether he was counselled by a supervisor Although Mr Herskovitz testified tha~ "it appeared that Brockman had not called in at all", under cross- examination he conceded that such an assumption was not possible because he did not know whether the day he overheard the conversation was the 2nd, 3rd or 4th day of Mr Brockman's absence, and that it was possiqle that he called in on the first day of absence Moreover, when it was pointed out that the records established that Mr Brockman left sick half day, Mr Herskovitz agreed that it is reasonable to presume that he would have explained his illness before he left work When it was suggested to Mr Herskovitz, under cross-examination, that he had no idea whether Mr Brockman's supervisor had called Mr Brockman at home, Mr Hecrskovi tz agreed, and went on to say that the supervisor probably did call When asked why he assumed tha t , Mr Herskovitz said that if he was the supervisor, and he did not know why an auditor was not at work he would call his home to find out He said that he did not "have a problem with that" In his examination-in-chief Mr Kenney described how he ~ame to request a medical certificate from the grievor He testified that he was not aware that the grievor had been ill on March 1st, but became aware that he had called in sick to the receptionist on March 2nd The grievor did not call in on the 3rd or the 4th He testified that on the morning of the 4th of March, when he carne in to work, the receptionist asked him whether he knew where the grievor was At that time Mr Kenney remembered that the grievor had been directed to provide him with the working papers for the P audit on Friday March 5th - the following day He wondered whether he ..... 15 was gping to receive the working papers as directed He decided te call the grievor at home and did so The grievor's daughter answered the phone When he asked to speak to the grievor she advised him that the grievor was at work and asked whether there was any message He said there was no message and that he would call again Mr Kenney then thought that the grievor may be at the taxpayer's premises When he called taxpayer P, he was informed that the grievor was not there Mr Kenney contacted the Human Resources Branch and explained the circumstances to Mr Des Kirk, Supervisor of Labour Relations Mr Kirk advised Mr Kenney that depending on the explanation offered by the grievor, he may be able to ask for a medical certificate under article 52 10 to verify the grievor's absence, but that he should wait until the grievor returned to work before deciding Mr Kenney testified that when the grievor returned to work on March 5th, he told the grievor that he had called him on March 4~h and was told that he was not at home He asked the grievor where he was at the time The grievor stated that he was sick in bed on all three days According to Mr Kenney, the grievor indicated that he was aware of his call to his daughter, but did not explain why his daughter had said that he was not at home or why he had not called the office as soon as he became aware of Mr Kenney's call Mr Kenney testified that the grievor also stated that he was unaware that there was a policy requiring calling in on each day of absence due to sickness Mr Kenney contacted Mr Kirk again and described the conversation he had with the grievor Mr Kirk advised that he should request a medical certificate from the grievor Later that same day, he provided the grievor with the memorandum Within 10 to 15 minutes the grievor provided the .' 16 medical note which he had obtained on March 2nd Mr Kenney's evidence was that once the medical certificate was received the issue was closed, and no further action was contemplated While the grievor's daughter, Ms Zahra Ladha, did not testify in person, a written statement prepared by her was filed in evidence on agreement In the statement Ms Ladha notes that she was a full-time university student On March 3rd she had been studying late into the night and slept-in on the morning of the 4th At about 11 45 a m she was awakened by the ringing of the telephone She answered The caller asked for Mark Ladha She told the caller that he was at work She sta,tes that the caller seemed surprised Then she writes, "I asked the question as to who he was and to leave a message" The caller declined Ms Ladha states that she became curious because of the reaction of the caller, and decided to check if in fact her father was at home When she found the grievor home sick in bed she told him "about the caller asking for Mark Ladha and that he did not want to leave his name or a message" The major difference between Ms Ladha's statement and Mr Kenney's evidence is that Mr Kenney denies that Ms Ladha specifically asked who he was or asked for his name According to him she merely asked if there was a message and he said no, that he would call back In my view, the fact that the grievor was called at home and received a request for a medical certificate, whereas Mr Herskovitz and Mr Brockman were treated differently, does not reasonably lead to a conclusion that the grievor was subjected to discrimination on the basis of any improper grounds Firstly, Mr Kenney was not the supervisor who dealt .- .' 17 with the absences of these two employees In any event, when Mr Herskovitz went off, he informed his supervisor that he had chicken-pox Therefore, it is reasonable to assume that the supervisor would have known that Mr Herskovitz would be away for several days In addition, he expressly told the supervisor that he would inform as soon as he knew his return date With regard to Mr Brockman, there is very little information about the circumstances of his absence It is not known whether at the outset he informed a supervisor of the nature of his illness or the length of his absence There is no evidence as to whether a supervisor called him at home or counselled him upon his return about the call in policy I!ldeed, on the basis of' the evidence before me, it is not known whether he too was requested for a medical certificate On the contrary, in this case there were particular circumstances that were not present in the HerSkovitz/Brockman situations The uncontradicted evidence is that Mr Kenney was quite upset about the manner in which the grievor handled the waiver on February 25, 1993 He had concerns about the way in which the grievor was carrying out the audit of Taxpayer P He decided to review what the grievor had done with regard to the particular audit In order to do so, he had directed that the grievor submit to him the relevant working papers on March 5, 1993 The grievor was quite upset about Mr Kenney's request for the working papers On March 4th, Mr Kenney did not know whether the grievor would be coming to work the next day and whether he would be receiving the working papers as promised He decided to find out by calling the grievor at home Mr Kenney's concerns about the grievor's work relating to the particular audit file and the working papers he was expecting the following day, were peculiar circumstances that caused Mr Kenney to call the grievor at home I . 18 Mr Herskovitz testified that it was not unusual for supervisors to call auditors at home and specifically stated that he had no problem about Mr ~ Kenney's call to the grievor's home His concern was that Mr Kenney did not identify himself when he called There is nothing to suggest that when Mr Kenney made the call he was of the view that the grievor was faking illness However, a suspicion of abuse arose when he was informed by the grievor's daughter that the grievor was at work He knew the grievor was not in the office or at the taxpayer's premises that day But the grievor's daughter had told him that the grievor was not at home but was at work which he knew was not the case In addition, Mr Kenney was aware that the grievor was under directions to produce the working papers for Mr Kenney's review the next daYJ something which the grievor was quite unhappy about In my view, this combination of circumstances, unfortunate as they may be, created an honest and rea$onable suspicion in Mr Kenney's mind that justified verification He still did not act rashly He consulted a Human Resources supervisor and followed his advise In concluding that Mr K~nney had an honest and reasonable suspicion that there may have been abuse of sick leave, I have also taken into account the evidence relating to the grievor's own conduct When he left work at the end of the day on March 1st, he manifested symptoms of the flu, like sneezing and coughing The grievor admitted under cross-examination that until he obtained the doctor's diagnosis on March 2nd, even he did not know whether it was a 24 hour flu or a one week flu On March 2nd he found out that he would be away for 3 days When he became aware of the duration of his absence, he should reasonably have advised the employer Whether or ,not the policy mandated it, if he had informed the employe; of the doctor's orders to stay ;- . 19 at home till Thursday and that he expected to return to work on Friday J March 5, Mr Kenney would have had no reason to call his home Unfortunately when Mr Kenney did call, the mistaken information supplied by the grievor's daughter further complicated matters Furthermore, when Mr Kenney confronted the grievor on March 2nd and told him about his call and of being told that the grievor was at work etc , the grievor by his own testimony, immediately connected that call to his daughter informing him on March 4th about a call she had received It was open for him to have explained to Mr KenneY at that time that his daughter had been mistaken about him not being at home However, he chose not to explain Instead, he kept repeating that he was sick in bed on all three days If he had provided that explanation ~t that time Mr Kenney would have had to take that into account in deciding whether to seek a medical certificate As it happened, at the time Mr Kenney decided to write the memorandum, he had received no explanation as to why he had been informed that the grievor was not at horne, when he was supposed to be on sick leave The union argued strenuously that despite anything else, Mr Kenney had no grounds for reasonable suspicion of abuse of sick leave because the grievor had no prior history of abuse or of excess absenteeism This Board has recognized that a reasonable suspicion may arise in certain circumstances, even in the absence of a past record In Re Jarvalt (supra) the grievor requested vacation for December 29 and 30 of 1982 and was denied On each of the two days, she stayed at home and phoned in sick Her supervisor consulted with the Personnel Office and called the grievor at home on the 30th and directed that she submit a medical certificate upon her return As requested by the grievor, this direction ~as subsequently- made in writing The grievor, having consulted with the union, did not i" '. 20 submit a medical certificate She was denied sick ray for the days in question and she grieved The Board recognized that in order to justify a request for a medical certificate for an absence of less than 5 days "it is not sufficient for the employer to have a good faith suspicion that there is an abuse of sick leave; the suspicion must also be reasonable in all of the circumstances" There also, the union relied on the absence of any past history of abuse of sick leave by the grievor, in arguing that the employer had no grounds for requesting a medical note under article 51 10 (as it was then numbered) At pp 6-7 Vice-Chair Swan concluded While it is clear to us that the grievor's past record does not give rise to any general suspicion about her absences, we think that the coincidence of her absence for three days in respect of which she had requested and had been refused vacation leave can constitute a reasonable specificg~ound for suspicion While the language used by members of the panel of this Board in the Ralph case, quoted above, would appear to require a very stringent test, it must be born in mind that the other panel was dealing with a requirement by the Employer that a particular employee provide a medical certificate for every single incidence of absence for an indeterminate time into the future The present case is quite different from that, since the suspicion is not generalized but is related to a particular set of circumstances, in respect of which only a special requirement is imposed In the present case, the suspicious circumstances arise directly from the coincidence of absence on days for WhlCh vacation leave had already been refused; if the Employer were not permitted to make a request of the kind whic~ is made in the present circumstances, the Employer would be deprived of virtually any ability to control the presence or absence of employees at the work place In the result, therefore, we accept that Dr Mendis had a suspicion sufficiently reasonable to permit him to invoke the second sentence of clause 51 10 In the present case as well, despite the absence of a past record of sick leave abuse attributable to the grievor, there was a combination of peculiar, and unfortunate circumstances, which causes me to conclude that ;- .' 21 Mr Kenney had cause for a reasonable suspicion, which entitled him to seek a medical certificate under article 52 10 There is no question that the waiver incident of February 25th, would have been clearly in Mr Kenney's mind when he wrote the memorandum on' March 5th It is very probable that the waiver incident, and the fact that the working papers were due on March 5th, contributed to Mr Kenney's suspicion However, that does not make the request for a medical certificate an act of bad faith or retribution The union filed in evidence a number of internal memoranda from Mr Heller to other members of management in which he made strong suggestions that the grievor has a habit of faking illness and of malingering As ( noted later in this decision, there is absolutely no substantiation of any of Mr Heller's allegations and innuendo However, it is clear that Mr Heller's opinions about the grievor expressed in these memoranda could not have impacted upon or influenced Mr Kenney's conduct in the first week of March 1993, because they were written subsequently They do not and cannot support the allegation that Mr Kenney acted in bad faith when he called the grievor's home or requested a medical certificate The grievance relating to the performance evaluation As noted, Mr Kenney's tenure as the grievor's supervisor ran from April 28, 1992 to May 26, 1993 However, the evidence indicates that Mr Kenney continued to be involved to some degree with the audit of Taxpayer P, which was being conducted by the grievor It was a high profile audit not only because of the issues involved, but because the taxpayer was not cooperating with the auditor, and was resisting disclosure of relevant \,0 22 information The result was that members of high level management were cognizant and involved in it to some extent It is also in evidence that while individual auditors carried out particular audits, ~he group manager was responsible to ensure that any assessments made were reasonable, correct and supportable by evidence indicated in the working papers prepared by the auditor Thus, the group manager had the responsibility to approve the audit and sign off on any assessments made While the written grievance only raised concerns about the use of the incorrect evaluation form and the denial of reasonable time to review the contents of the evaluation, a number of other events were relied upon by the grievor at the hearing, as indicative of the fact that Mr Kenney's treatment of the grievor with regard to the evaluation was tainted by bad faith and discrimination Nevertheless, according to the grievor, the root cause which precipitated all of the alleged actions on the part of Mr Kenney was Mr Kenney's desire to retaliate against him because he protested Mr Kenney's use of the improper evaluation form 1 The evidence indicates that sometime around 1990 the ~inistry changed the method for evaluating employee work performance, from the Employee Personnel Appraisal (EPA) to the Performance Management and Career Planning (PMCP) ,format The EPA was done on a brief one page form, and was considered by the employer to be inadequate and lacking in information The PMCP procedure was much more detailed in comparison Before a PMCP could be done, however, an employee had to be set up on a PMCP cycle, which included a review of the essential job requirements of the position held and the setting of goals and expectations On June 9, 1998, Mr Ken'hey presented to the grievor a performance evaluation covering the period May --- i.' ;g 23 1, 1992 to April 30, 1993 It was prepared in the PMCP format because Mr Kenney understood that the Personnel Branch would not accept any other format As he handed it to the grievor Mr Kenney commented to the effect "you are not going to be thrilled with this" A meeting was set up for June 22, 1993, to discuss the PMCP, after the grievor had had a chance to review it In the PMCP form the employee's job performance is required to be rated with respect to 5 key job requirements There are 4 possible ratings - "not satisfactory", "marginal", "me~ts requirements" and "exceeds requirements" Each of these ratings (except "not satisfactory") is subdivided into 3 l~vels - low, mid and high If an evaluation is rated at "not satisfactory or at the low end of "marginal", the evaluating supervisor was required to provide a supporting explanation The PMCP presented to the grievor had him rated at the low end of "meets requirements" in 2 of the 5 key job requirements He was rated at "marginal" in the other ~ key job requirements, 2 at the low end and one at the high end The overall assessment of the grievor's job performance was rated at the high end of "marginal" At the meeting on June 22, 1993, the grievor objected to the PMCP presented to him While indicating his disagreement with the rating of his performance by Mt Kenney, the grievor's primary positi6n was that Mr Kenney had used the improper format for evaluation He protested to Mr Kenney that he had not been set up on the PMCP cycle, and took the position that his evaluation should be done on the EPA form Mr Kenney agreed to present a job evaluation on the old EPA format as urged by the grievor The grievor also claimed that Mr Kenney had only seen incomplete files and requested that Mr Kenney reconsider the ratings after allowing him more .t \ 24 time to present completed files Mr Kenney agreed to allow the grievor time till the end of August to provide additional examples of work performed during the review period Subsequently Mr Kenney was advised by the Human Resources Branch that he could no longer use the outdated EPA form for evaluating the grievor Therefore, even though he had promised the grievor to re-do his evaluation in the EPA format, on November 9, 1993, the evaluation was presented to the grievor again in the PMCP format The contents of this second PMCP were substantially the same and the ratings identical, as in the first PMCP This second PMCP was presented to the grievor with the following explanatory covering memorandum In a meeting we had on June 22, 1993, I agreed to withdraw my evaluation of your performance for the above period until the end of August, 1993 to allow you time to show me examples of work performed in this period which would allow me to reconsider my evaluation I also agreed to prepare my evaluation using the old EPA format as the key job requirements appearing on the PMCP form now in use had not been specifically discussed with you by your previous supervisor I received no new examples of your work by August 31, 1993 and, therefore, could not change my evaluation of your performance Unfortunately, I have been informed that the old EPA format can no longer be used I have attached a copy of your PMCP and would ask that you review it and make comments by November 26, 1993 I will be available to discuss this with you at your convenience before this date Please note that I have included your concerns about not having had the opportunity to discuss the key job requirements prior to the evaluation period in my comments on the PMCP The next day the grievor requested that the deadline for his comments be extended from November 26th to November 30th and Mr Kenney agreed !; 25 However, the grievor did not respond by November 30th Mr Kenney forwarded the PMCP to the Audit Manager Mr Khalid Siddiqui (who had by then replaced Mr Heller) with a notation that the PMCP would not be signed by the grievor Subsequently, Mr Kenney was informed by Mr Siddiqui that he had a meeting with the grievor and a union steward about the PMCP, and I that they had refused to accept an evaluation in the PMCP format Mr Kenney was directed by Mr Siddiqui to prepare an evaluation in the EPA format Mr Kenney prepared an EPA and presented it to the grievor on December 8, 1993 The evidence establishes that when the EPA was presented on December 8th, Mr Kenney expected th~ grievor to review it and respond the same day The grievor informed Mr Kenney that he needed time to review it, and pointed out that his holidays and vacation were corning up He requested time to respond until after his return to work on January 81, 1994 Mr Kenney informed that in his view there was no need for further delay because the grievor had been aware of the contents of the :evaluation for sometime This grievance was filed the same day The Board first turns to the issue relating to the format of the evaluation There is no question that the PMCP format was inappropriate I because the grievor had not been properly set up on the cycle, which was a precondition for the use of the PMCP format Mr Kenney initially treated it as a mere technicality When the grievorobjected to the PMCP format, the uncontradicted evidence is that Mr Kenney agreed to prepare an evaluation in the old EPA format However, the personnel Branch informed him that he could not use the EPA format any longer So he presented the evaluation again in the PMCP format When Mr Kenney's .' f ':, 26 superior, Mr Siddiqui intervened and directed that the EPA format be used, Mr Kenney did so While the confusion about the format understandably may , have been annoying to the grievor, on the basis of the evidence I cannot conclude that Mr Kenney was acting in bad faith and trying to "push through an evaluation in the wrong format" as alleged by the grievor Mr Kenney was caught in a dilemma The EPA format was no longer being used and had been replaced If he used it, he would face objections from the Personnel Branch At the same time, the current PMCP format could not be used because the preconditions had not been met One option was to not do a performance evaluation for the grievor for the period in question That would have been contrary to policy, which required annual evaluations Whether or not Mr Kenney made a good judgement in the circumstances, I do not find that his conduct was indicative bad faith It is not at all clear to me in any event, how the use of the PMCP format would have enabled Mr Kenney to harass the grievor, any more than the use of the EPA format, if indeed that was Mr Kenney's motivation The grievor also questioned why there was a "sudden need" for Mr Kenney to conduct a performance evaluation for him He te~tified that the last performance evaluation he had was in 1990 However, the undisputed evidence is that the Ministry policy required that every employee be evaluated annually Mr Kenney testified that he did evaluations every year for all employees under his supervision Besides, the evidence indicates that in 1991 ahd 1992 the grievor's previous supervisors attempted to do evaluations, but for various reasons it did not get done particularly considering that the grievor's work performance had not been evaluated for several years, and that the policy mandated annual ,', 27 evaluations, I cannot infer any impropriety from the fact that Mr Kenney decided to evaluate the grievor's work The grievor also testified that Mr Kenney ceased to be his supervisor in May of 1993 He suggested that Mr Kenney's interest in November and December of 1993 to pursue an evaluation was indicative of a desire to harass Again I have to disagree Mr Kenney's goal at all times was to evaluate the grievor's performance for the period April 28, 1992 to May 26, 1993 There is no dispute that Mr Kenney was the grievor's supervisor throughout that period Mr Kenney set about to do the evaluation within weeks after the end of the review period While Mr Kenney had ceased to be the grievor's supervisor at the end of May, he presented the first PMCP draft on June 9th There was no policy requiring that a person must continue to be the employee's supervisor at the time of preparing a performance evaluation In my view, such a pOlicy would not have made sense What is important is that the evaluator must be familiar with the work of the employee in the review period During the period I reviewed the grievor was under Mr Kenney's supervision Therefore Mr Kenney was in the best position to know about the work performed by the grievor in that period Indeed, the Board cannot see how anyone else could have evaluated the grievor's work during that period The evidence indicates that as the grievor's supervisor, Mr Kenney raised a concern about hours spent by the grievor on a particular audit file He requested that the grievor sUQmit to him the working papers for his audit work for review The grievor claims that these actions constituted harassment and demonstrated bad faith on the part of 'Mr Kenney I ~. 28 ~he grievor at the time was spending almost all of his time on audits of several related companies in the film industry, which was referred to as the P group without getting into the technical details, it suffices to note that each auditor was required to post the hours he had spent on a particular audit to the appropriate file on a monthly time summary This information in turn was fed -into a computer The auditor w~s also required to fill in the percentage completed of the particular audit and the estimated amount of recovery The do~umentary evidence before me establishes that the grievor had indicated that as of the end of March 1993, a particular file in the group was 50 percent completed, that he had spent 532 hours on it (whereas the original budget was for 125 hours), and that he anticipated no recovery on this file with considerable reluctance, the grievor admitted under cross- examination that on the face of it, that is what the time summary would indicate to the supervisor Mr Kenney's position was that when he saw that the grievor had sUbstantially gone over the budgeted hours and had spent 532 hours on a file which in his own estimation would not yield any recovery, he decided to review "what is going on with this audit" He decided to investigate by reviewing the grievor's working papers for the P group of audits The grievor was cross-examined as to why Mr Kenney's concerns were not justified The following exchange took place Q If your supervisor looked at this report he would see a file you say is 50% complete, You didn't expect any recovery but had already put in 532 hours when the original budget was for 125 hours? , 29 A These are estimations There was an error As I said the hours allocated were wrong The P group was treated as one audit Q Do you agree that if a supervisor reads it he ~ill read it as I described? A That is what it shows But the percentage completed and estimated recovery are not updated often The manager knows that the information is not entirely accurate Even the budgeted hours Q For you to write 50% completed, you must have at some point decided that you have completed 50% of that audit? A There could have been a misposting Q You are talking of the 532 hours? A Yes Q But what about the 50% completed - You must have decided that at some point? A Yes Q You therefore put down 50% completed? I A I had stacks of files Q You audit particular companies for particular years? A Yes Q Here you say that at some point I have half completed the P4 audit? A Yes I say 50% based on my best judgement Q 30 Q You didn't do a check-list to see what you had completed and what you had not? A I made a judgement Whether I put 50% here or not, its irrelevant It has no relevance It really does not mean anything They don't even look at it Q Are you in charge of filling out the report or whats to be done with the information in it? A I have been an auditor for 20 years I know what is done with it Q Here you say you put in 532 hours and no recovery is expected? A These columns a~e sometimes not updated A manager more or less knows what work is being done They have no,relevance Q Are you a manager? A I have acted as manager Q A manager in February or March gets a report showing an audit is 50% completed No recovery is expected and an auditor has already put in 532 hours - you say, the manager has to ignore it? A No If he was concerned he should have come tb me and asked "You have so much hours and no r~covery - how come" It was my error I admit it Q In exhibit 2, pp 9-10 you list your hours for each file? ! A Yes Q The hours from 443 to 532 is in the period when Mr Kenney was your group manager? I I ~ 31 A Yes Q So do you agree - we are not talking of a single error in posting hours - you show numbers a little bit at a time? I I I A If thats how you interpret it, yes T.here was an error in this file where hours were getting posted I I Q You were doing the ,posting though? I A Yes I agree I made an error I assumed 50% was reasonable As soon as the error was noticed we corrected it Q Agree though that when a manager sees a file 50% completed ,and 532 hours spent and no recovery expected, he sh~uld investigate? A Yes Q Isn't that what Mr Kenney did by asking for your working papers? A He knew that hours were being charged He must have known its an error but still decided to question me When he pointed out the error, I agreed to the moving of the hours The grievor during his examination-in-chief gave several reasons as to how the 536 hours came to be charged to this particular file, which had no work done on it Initially he suggested that he cou'l d not post the hours to the correct file because management had neglected to enter that file in his inventory of files on computer However, subsequently under cross-examination, he admitted that he had erroneously charged the hours to this particular file when they should have been charged to two other files in his inventory While admitting that it was his error in recording ~ 32 that the file was 50% complete and that he had spent 532 hours on it, he downplayed the significance of his mistake He suggested that no matter what he wrote down, Mr Kenney should have known what work was being done by him and that there had been an error The grievor repeatedly suggested that the information he recorded in the time summaries was "irrelevant" and did not mean anything He claimed that to be the case because he believed that the information was used only for internal purposes At other times the grievor pointed out that the particular company was related to the P group of companies The issues he was investigating were common to all of the companies in the group and all of the companies had a common representative Therefore, he took the position that it did not matter which file in the group is charged with the time Having reviewed the evidence relating to the surrounding circumstances, I cannot infer that Mr Kenney acted out of any improper motive when he questioned the grievor as to why he had been spending significant amounts of time on a file which did not have any potential for recovery One possibility was that there had been an error in the posting of the numbers by the grievor However, the other possipility was, and this was suggested on the face of the summary sheet, that the numbers were correct and that the grievor had in fact been wasting time on a file with no potential for recovery Mr Kenney had a concern that the latter may be the case and raised it with the grievor There is nothing in the evidence to support the grievor's assertion that it should have been obvious to Mr Kenney that there had been an error in the posting Indeed, the grievor nas not unconditionally conceded that there was an error He also attempted to justify what he did by stating that it did not matter In the normal course, it is a supervisor's role to monitor and correct any ~ 33 errors or inaccuracies committed by employees There must be strong evidence to cause this Board to infer bad faith or so~e ~mproper motive from the fact that a supervisor did what is normally expected from a supervisor i e to monitor and correct errors and inaccuracies on the part of employees There is no indication that what Mr Kenney did here was unusual or remarkable Mr Sato, a witness called by the union and a long service auditor in the department, agreed that it was the "manager's job" to ascertain whether productive work is being performed, when he sees extensive hours being spent by an auditor When asked whether he himself had been periodically asked by supervisors to report on how he was spending (' his audit hours, Mr Sato replied "Yes Suddenly a supervisor will say I want to get a handle on what is going on with this file But sometimes if the supervisor is working closely with you on a file he will have few questions" He testified that the auditor must make best efforts to accurately estimate the percentage of audit completed when filling in the monthly summary A further allegation is that Mr Kenney's direction to the grievor that he submit his working papers for review was indicative of bad faith, "- discrimination and harassment The grievor stated that he had never been previously asked to produce working papers for review on a file which was still in progress Evidence was led by the union from two other auditors to the effect that they had never been asked by a supervisor to produce working papers at a time when an audit was still in progress The grievor could not see any urgency for Mr Kenney to see the working papers in question The evidence establishes that normally supervisors do not review ~ 34 working papers until after the audit had been completed However, it is not reasonable to assume that if a supervisor deviates from this practice in a particular case, he is necessarily acting out of bad faith That depends on whether there was a valid reason for the departure As already noted, the information available to Mr Kenney on its face indicated that the grievor may not be spending his time productively He therefore decided to investigate There is no question that as a manager, it was Mr Kenney's right, and one might say obligation, to do so The manner he chose to do the investigation was by reviewing the grievor's working papers to date While the grievor regarded it as strange and unusual for Mr Kehney to expect working papers in an organized state, with indexes and cross-references etc , the evidence suggests that that is not a reasonable position Mr Leo Herskovitz, another auditor, while recognizing that different auditors did their working papers differently" testified that most auditors had "corrunons threads" as to how working papers are maintained on an audit in progress He said that an auditor would have "some indexing, proposed adjustments and working papers to support those " He testified that he did not simply include documents obtained from the taxpayer in the working papers He related the documents to the issues in the audit It is evident that Mr Herskovitz's practice is closer to the expectations of Mr Kenney The evidence also indicates that sometimes an auditor conducting an audit I ma y .have to be replaced, for example due to illness Then the auditor who takes over the audit must be able to continue from where the previous auditor left off The Board finds the employer's evidence convincing that this will only be possible, if some detailed and organized working papers prepared by the previous auditor are made available to the E ~ 35 auditor taking over If such material is not available, the second auditor would have to start allover from the beginning, and the work put in by the previous auditor would be wasted In any event, what the evidence establishes is that, the grievor and his supervisor had different ideas as to how working papers are to be maintained in an audit in progress The fact that Mr Kenney chose to review the grievor's working papers, or that he was critical of the manner the grievor kept his working papers, do not lead the Board to conclude that Mr Kenney was acting in bad faith or was discriminating against the grievor Nor can his conduct be seen as harassment The Board has carefully reviewed the evidence re;Lating to the allegation by the grievor that when the EPA was finally issued, Mr Kenney made the evaluation worse than it was in the prior evaluation presented in the PMCP format, as a retaliation against the grievor for having questioned the appropriateness of the PMCP format This allegation is based on the fact that while in the prior PMCP there were no "not satisfactory" ratings at all, in the subsequent EPA the grievor's "organizing ability" was rated as "unsatisfactory" In order to put this dispute into context, it is necessary to set out the categories to be rated and the rating to be assigned in the two formats In the PMCP the employee was required to be rated on the following 5 "Key Job Requirements" 1 Preparing an audit program; determining the major issues to be covered and the information to be gathered to provide sufficient and appropriate audit evidence 2 Updating technical knowledge by keeping abreast of changes in legislation and branch policy; and I .. ! ~ 36 performing research as required on complex tax issues 3 Preparing audit working papers in an appropriate, concise, neat, legible and timely manner 4 Preparing audit reports and administrative documents in a clear, concise, neat, legible and timely manner 5 Ensuring audits are completed in a timely manner and the time spent is commensurate with the difficulty of the audit and the complexity of adjustments made In each category the employee was to be rated as "Not Satisfactory", "Marginal", "Meets Requirements" or "Exceeds Requirements" Each of the ratings, except "not satisfactory", had 3 levels For example an employee may be marked marginal right on, or closer to "Not Satisfactory" or closer to "Meets Requirements" In the EPA format, an employee was to be rated on four factors (1) Reliability of judgement (2) Technical competence (3) Organizing ability (4 ) Communication skills The possible ratings were "Unsatisfactory", "satisfactory" and "Outstanding" The "Satisfactory" rating was in turn sub-divided into high, average and low A "Low satisfactory" rating will be close to the rating of "Unsatisfactory", and a "High Satisfactory" will be close to "Outstanding" The grievor was rated in the PMCP by Mr Kenney as "Meets Requirements" for Key Job Requirements 1 and 2 For requirement 4 the grievor was rated as at high marginal, i e just short of "Meets Requirements" In Key Job Requirement 3 and 5, the grievor received ;:; '! ,~ 37 ratings of low marginal, i e just better than "Not Satisfactory" None of the 5 categories was rated as "Not Satisfactory" Mr Kenney testified that when he was directed to do the evaluation on an EPA form, he did his best to fit the content of the PMCP into the EPA format The EPA had a specific factor called "Organizing ability" that had to be rated The PMCP did not have such a specific Key Job Requirement However, he concluded that "organizing ability" fell within Key Job Requirements no 3 and 5 set out in the PMCP form along with other factors He had rated the grievor at the low end of marginal for requirements no 3 and 5 in the PMCP, that is the rating next better than "Not Satisfactory" However, aC90rding to Mr Kenney when "organizing ability" had to be rated as a separate factor, he felt that the grievor's performance was not satisfactory He testified that he f;elt so because, the grievor's files in the P group consisted merely of a large volume of documents and photocopies, obtained from the taxpayer, which were unmarked and unreferenced There was no indication in the file as to why the documents were there and what issues they related to The grievor had made very few notes and there were no conclusions indicated Mr Kenney testified that considering that substantial ,time had been spent on this audit, he found the status of the files "hopelessly inadequate" Having carefully considered the evidence, I cannot conclude that it indicates bias, discrimination or bad faith on the part of Mr Kenney An "Unsatisfactory" rating appeared in the EPA, whereas the PMCP did not have any "Not Satisfactory" rating At first blush, this may seem like a dramatic change However, the evidence is that in the PMCP the grievor $:: ~~ st: ~ 38 barely made the marginal rating in the two key job requirements which encompassed organizing ability Mr Kenney's explanation that when organizing ability was separately assessed, it came up as "Not Satisfactory" is credible It is to be noted that while the grievor received a low marginal rating for the 2 job requirements in the PMCP, in the evaluator's comments Mr Kenney remarked about the grievor's deficiencies The comments made by Mr Kenney in full, were as follows Mark has shown an ability to identify and pursue unique and complex issues He is determined and has obtained large adjustments, particularly in the areas of non-resident payments and royalties The working papers produced by Mark in the past year, however, have been sub-standard Mark's working papera have been found to be deficient in the areas of documentation, referencing and explanation Mark has not made efficient use of his audit time, spending many hours on areas with low recovery potential The number of hours charged to his files are well above the budget in almost all cases and do not appear warranted Mark does not organize his work well and has a large number of long outstanding, uncompleted files in his inventory Mark's verbal communication skills are good but an effort must be made to improve on his written communication skills It is evident that apart from the positive comments in the first two sentences about the grievors ability to pursue complex issues and obtain large recoveries, the rest of the comments are critical of the adequacy of his working papers Specific adverse comments are made about his organization of work The Board has carefully as~essed the totality of the evidence relating to the performance evaluation There were certainly, things that ", :..' ~ 39 Mr Kenney could, and in some cases probably should, have done differently For example, his expectation that the grievor respond to the EPA the same day was clearly unreasonable However, unreasonableness does not always indicate bad faith In Re Bousquet 541/90 (Gorsky) at pp 59-61, the Board observed about the relationship between unreasonableness and bad faith as follows Bona fides may have a broad or narrow meaning depending on the context See, Manon Schiralian, 914/86 (Roberts) , referred to in Shaw, 410/88 (Watters), where the Board stated, a,t p 6 "Reasonableness in this context is a species of good I faith" The Shaw case was concerned with a grievance which asked the Board to find that a purported release of a probationary employee under the authority of Section 22(5) of the Public Service Act for ostensibly having failed to meet the requirements of his position amounted to a dismissal without just cause which the Board had jurisdiction to deal with under s 18(2) (c) of the Act In an earlier case decided by the Board, Leslie (1978)~2 LAC (2d) 126 (Adams) , at 0 134, the majority of the Board state~ this Board is of the opinion that the employer cannot camouflage either the discipline or the termination of an employee for a reason other than the employee's failure to meet the requirements of his position by the guise of a release' under the Public Service Act This Board therefore, has jurisdiction to review a contested release to insure that is what it purports to be But in the adjudication of such a grievance, this board is without jurisdiction to evaluate and weigh the reasons of the employer unless the Collecti ve Agreement provides otherwise The Board must only be satisfied that the employer, in good faith, released the employee for a failure to meet the requirements of his position As long as the Board can be satisfied that the employer has made an evaluation of that kind, it has no jurisdiction to revi ew the fairness of correctness of that termination under [what is now s 18(2) (c) of the Act] (Emphasis added) In commenting on the use of the term "unreasonable", in some earlier decisions of the Board dealing with the good faith exercise of the statutory right to "release" a probationary employee, the Board stated in Shaw, at pp 5-6 ,. 1~ 40 While this term (unreasonable) is utilized in the earlier decisions we do not take it to mean that we can review the merits of the employee's job performance and reinstate him if we find that assessment was "unreasonable" that the employee had not met the job requirements Reasonableness in this context is a species of good faith Whereas the phrase "bad faith" could encompass a release improperly motivated or maliciously intended, "unreasonableness" speaks more to an objective assessment that the release did not flow logically or rationally from the facts If, for example, there was simply no evidence that a probat;iol1ary employee had not fulfilled or could not fulfil the job requirements, then no matter how well meaning were the actions of his superiors, the release would have been unreasonable exercise of autho~ity The Board in Shaw also dealt with the fairness requirement that thee be a rational relationship between the facts and the release (at p 6) This factor was found to be "nearly synonymous with reasonableness' " In holding that (ibid ) The release can be reviewed as a discharge if the employer's "assessment that a certain set of facts justifies release is irrational' on any half-intelligent view of the matter," the Board cautioned (ibid ) That the rational relationship test I should not be placed too high, as It is easy to brand as "irrational" any thought l process or decision with which one does not agree I The Deputy Minister must be free to make decisions, wi thout being found to have acted irrationally merely because a board of arbitration might have come to a different decision That is, the test of good faith, in this context is not one of I correctness In the present case also, whether or not the Board is of the view that Mr Kenney's action~ and decisions under challenge ~ere correct, on the basis of the evidence, the Board cannot conclude that his conduct was "irrational" in the sense described by the Board in Re Bousquet (supra) and Re Shaw cited therein All of the actions of Mr Kenney were a legitimate I exercise of the employer's management rights and the evidence does not 1 establish bad faith See also, Re Murphy, 1102/93 (Dissanayake). \ I I ~ '~r r 41 The union also alleged harassment and bad faith on the part of Mr Heller The evidence establishes that Mr Heller reached totally unsubstantiated and unjustified conclusions about the grievor faking sickness and abusing sick leave Disparaging opinions about the grievor's honesty in this regard were included in internal memoranda While the Board finds Mr Heller's actions completely unjustified and irresponsible, the Board agrees with employer counsel that they cannot give rise to any findings of liability or remedy in the two particular grievances before the Board It must be recalled that the Board is dealing with two individual grievances, one specifically dealing with the sick note incident and the other with the performance evaluation It is clear from the evidence that the disparaging memoranda by Mr Heller were written well after the events surrounding the sick note incident Therefore, they could not have influenced Mr Kenney's actions, and are therefore unrelated to the substance of the grievance The uncontradicted evidence is that Mr Heller was not in any way involved with any of the decisions relating to either the sick note or the performance evaluation Mr Kenney made it clear that he had no discussions or consultations with Mr Heller with regard to any decision he made on either issue Therefore, while Mr Heller's conduct was reckless and irresponsible, it cannot have any bearing on these grievances There is little doubt in my mind that the relationship between the grievor and Mr Kenney deteriorated rapidly after Mr Kenney became the grievor's Group Manager Mr Kenney exercised his supervisory authority in a formal and direct manner He did not hesitate to question an employee if he had a concern in his mind And he did so in a formal and business- like manner and not in a friendly or casual way This unfortunately, was ~~'- I , . 1 42 the very opposite of the grievor's expectations of a good supervisor The grievor had a very high opinion of his own level of competence as an auditor He took pride in the fact that he was a "professional" The major clash arose out of the grievor's expectations as to how a supervisor ought to treat a professional employee The grievor expected that as a professional he should be left alone by the supervisor to independently carry out his work He resented any monitoring or questioning of his work methods or conduct Particularly because he was a long service auditor, and Mr Kenney a relatively new supervisor, any interventio~ by Mr Kenney was met with resentment For example, the grievor felt that Mr Kenney should not call him at the taxpayer's premises He said that the taxpayer may think that the supervis.or was "checking up" on him As a result, the grievor asserted that by so calling, Mr Kenney was "attempting to undermine me" Moreover, the grievor was of the view that when it came to performance by an auditor all that mattered was the amount of recoveries made The grievor had a record of obtaining high recoveries in the past It was clear throughout his testimony that the grievor was of the view that the management should have no reason to have any questions or concerns about his work performance given his track record on recoveries That is .n the reason he felt that any mistakes on his part, eg inaccurate recording of hours on the time summary sheet, were of no significance He could not appreciate why Mr Kenney would make an issue of something like that He regarded the recording of hours in the summary sheet as irrelevant However, the evidence is that the information in the time summary sheets is used by the employer for a number of purposes including decisions on manpower needs and budgets Moreover, the evidence is that when the 43 - provincial Auditor reviews the operations of the Department, it is done on the basis of that information The Board finds the grievor's position untenable Very simply, it does not make any sense for the employer to require auditors to fill in time summary sheets if the information filled in cannot be relied upon as being reasonably accurate The 'Board finds Mr Kenney's position in this regard far more reasonable than the grievor's Similarly, it was clear that regardless of the particular circumstances, as a long service professional employee, the grievor expected that Mr Kenney should have totally trusted him~ For example, even though he himself had posted hours to a file, indicating on the face of the time summary sheet that he had spent substantial hours OJ} a file with no potential for recovery, the grievor's attitude, even during testimony, was that Mr Kenney should have known that the hours as recorded were incorrect - that Mr Kenney ought to have known despite the documentary information in front of him, that the grievor would not spend his time unproductively Any questioning or expression of concern was seen as harassment, discrimination or bad faith The grievor also resented Mr Kenney's formal style of supervision For instance, after reluctantly conceding that Mr Kenney could not ignore a summary sheet indicating that he had been wasting time on an unproductive file, the grievor testified that all Mr Kenney had to do was to talk to him If he had done so, the grievor would have corrected the records and that would have been the ~nd of it He saw Mr Kenney's written request for working papers as harassment and the fact that Mr Kenney copied his memorandum addressed to the grievor, to Mr Kenney's superiors as-- intimidation 44 The grievor's frame of mind is amply demonstrated byrhis assertions with regard to an incident relating to an expense account Mr A Hooseinny succeeded Mr Kenney as the grievor's supervisor and did a performance evaluation for the period after the period covered by Mr Kenney's evaluation The grievor considered Mr Hooseinny's evaluation as a reasonable one and used it to contrast Mr Kenney's tlowever, he was very upset that Mr Hooseinny had seen fit to question him about an expense account The fact that he chose to testify about this incident must mean that he considered that Mr Hooseinny acted in bad faith or that he was harassing the grievor in that regard He testified that he did not understand why a meeting was called to discuss that expense account because "there was nothing in the claim which was unusual" The evidence is that on a field audit trip to New York, the grievor was accompanied by Mr Hooseinny They travelled between the hotel and the taxpayer together Therefore, Mr Hooseinny was generally aware of the taxi trips the grievor took When Mr Hooseinny saw the grievor's expense claim, he had a concern about the taxi expenses The grievor had claimed for more taxi trips between the hotel and the taxpayer, than what Mr Hooseinny could recall Also, some of the taxi receipts submitt~d were written in the grievor's own hand Mr Hooseinny called in the grievor for a meeting and asked for an explanation The grievor upon review admitted that ,he had recorded the dates incorrectly He also explained that the extra trips Mr Hooseinny was concerned about occurred because on one occasion the grievor had left his glasses at the hotel and had to return to get it As for the receipts, the grievor explained that some taxi drivers did not wish to spend time writing out receipts and simply handed out blank receipts He assured that he filled in the receipts accurately in those instances There is no suggestion that management in any way questioned any of the grievor's 45 explanations, and the claim was approved, despite the fact that there was a missing receipt for one of the taxi trips claimed Indeed, the evidence is that, during the review it was revealed that the grievor had used an incorrect (lower) exchange rate in his calculations This was corrected and the account as approved was for an amount higher than what the grievor had claimed originally Despite the fact that the review disclosed errors in the grievor's claim, that he had incurred an additional taxi fare as a result of his own inadvertence, that he was missing a receipt, and the fact that his explanations were readily accepted and that ultimately the amount of his claim was in fact increased, the grievor continued to feel offended that Mr Hooseinny felt it necessary to question his claim in the first place This indeed is a most unfortunate case The Board does not doubt for a moment that the grievor sincerely feels wronged by Mr Kenney He has felt harassed and discriminated against and consequently may have suffered '\ stress at work Had Mr Kenney recognized the peculiar sensitiveness of the grievor when it came to questions affecting his integrity and competence, and had been willing to adjust his ways in order to accommodate the grievor, things may have been better However, Mr Kenney's failure to do so cannot, in the Board's view, be seen as being indicative of bad faith, harassment or discrimination In a perfect world supervisors should be able to place unconditional confidence and trust on professionals with long service There should be no need for any monitoring or review of their work, for suspicion or confrontation However, the reality is that I there is no assurance that even the most qualified and dedicated employee will not on occasion fall short of what is expected I When on the face of 1 it there is indication that the employee has been deficient, the supervisor I 46 cannot be held guilty of harassment, bad faith or discrimination, merely because he chose to investigate or to raise a concern In this regard, the following observations of arbitrator Laing in Re ~ Government of the Province of British Columbia, (1995) 49 L,.A C (4th) 193 at p 247 may be aptly repeated As I stated earlier in this award, harassment is a serious subject and allegations of such an offence must be dealt wi~h in a serious way, as was the case here The reverse is also true Not every employment bruise should be treated under this process It would be unfortunate if the harassment process was used to vent feelings of minor discontent or general unhappiness with life in the workplace, so as to trivialize those cases where substantial workplace abuses have occurred The first responsibility of people in the workplace is to work out their own differences for themselves, if they can If they cannot, and the threshold test of serious actions with significant consequences is met, this process can and' should be invoked where harassment is legitimately believed to have occurred Otherwise, the process could itself be used as a means of obtaining vengeance against petty irritants or trivial concerns In conclusion, the union has not established harassment, bad faith or discrimination on the part of Mr Kenney The result of all of the foregoing is that, both of the present grievances are hereby dismissed 20th Dated this day of March 1998 at Hamilton, Ontario ~~~z0 N~ma Dissanayake vice-Chairperson r